JUDGMENT : 1. THIS is an appeal by the petitioners against the judgment and order of Banerjee, J. dated March 7 and 8 of 1973. The facts in short according to the petitioners are as follows: the petitioners are employed in the canteen of Loco, Carriage and Electrical Workshop, South Eastern Railway, Kharagpur in different capacities like cook, helper, store issuer, stall keeper. They were appointed on diverse dates between November 7, 1954 and April 18, 1963. Canteen was established under the Factories Act, 1948 for providing food to about 14,000 workers of the workshop and formed part of the workshop being exclusively used for catering of the workers. The Kharagpur workshop is a factory within the definition of the Factories Act, 1948 and the canteen is being run by the Railway administration through an administrative committee consisting of two officers of the Railwayone Personnel Officer as President and assistant Personnel Officer as Vice-President with no other member. The canteen has never been run on co-operative basis by a co-operative society of any Managing Committee of the staff. The Railway administration has the ultimate control and is obliged under the Factories Act to maintain the said canteen. In this state of affairs the employees of the canteen are the employees of the South Eastern railway run by the Union of India. This position was admitted in the circular of the Ministry of Law dated October 20, 1956 as also of the Railway Board dated December 27, 1961. There was a further circular by the Railway Board dated April 20. 1963 addressed to all the General Managers. The petitioners received full pay and other allowances including D. A. up to November 30, 1965. There was a revision of D. A. of the Railway Servants with effect from December 1, 1965 whereby the rates were increased and the petitioners received such enhanced D. A. for the period from December 1, 1965 to December 31, 1966. These grants were sanctioned by the Senior Accounts officer (W) of Kharagpur. The petitioners were however wrongfully denied the grant of D. A. from January 1, 1967 on an objection raised by the accounts department. These grants were sanctioned by the Senior Accounts officer (W) of Kharagpur. The petitioners were however wrongfully denied the grant of D. A. from January 1, 1967 on an objection raised by the accounts department. The Railway Administration is also not treating the petitioners as the Railway employees and the petitioner's representation for enhanced Dearness Allowance and recognition of their status as railway servants have yielded no result, A demand of justice dated February 9, 1970 was served by the petitioners' lawyer but no reply was given to the same. The petitioners in this state of affairs on the above allegations moved this court in constitutional writ jurisdiction shortly thereafter praying for a writ in the nature of mandamus commanding as Railway servants and also for payment of salary, allowances, benefits including enhanced dearness allowance from January 1, 1967. A rule nisi being civil Rule No. 1799 (W) of 1970 was issued on this application. The respondents on service of the rule entered appearance and contested the rule by filing an affidavit-in-opposition affirmed by bishnupada Pal, Assistant Railway Officer of the South Eastern Railway on May 26, 1972. All material allegations made in the petition were denied and it was stated that the petitioners were employed or appointed by the canteen committee and some of them were working in the wagon shop canteen which is a different establishment and further some of them were even appointed after April 16, 1973. It was stated that the workshop canteen was set up in compliance of the provision of Factory Act for providing food to the workshop staff. The canteen is located inside the workshops but it does not form part of the Kharagpur Workshop as no manufacturing process is carried on in the canteen within the meaning of Section 2 (k) of the Factories act and the canteen staff are not workers within the meaning of Section 2 (1). It is further stated that the canteen was run by the Railway through its catering department till November, 1954 and thereafter the staff of the catering department employed in the canteen was withdrawn and the management of the canteen was handed over to a Managing Committee formed for the purpose. This committee was composed of both elected and nominated members while day to day management of the canteen was entrusted to the Secretary of the canteen who was an elected member. This committee was composed of both elected and nominated members while day to day management of the canteen was entrusted to the Secretary of the canteen who was an elected member. The said canteen committee appointed the staff to run the canteen and their service conditions were such as contained in the bye-laws framed by the Committee which became effective from November 7, 1954. According to the bye-laws the service in the canteen is purely private as under a private undertaking and has no relation to Railway service which will also appear from the specimen letters of appointment of canteen workers. 2. THE canteen committee functioned upto September 18, 1963. But due to mismanagement, the Deputy Chief Mechanical Engineer s. occupier of the workshop decided that the members of the Committee other than the President and the Vice-President would cease to function in regard to day to day affairs except as acting as an advisory body. Since then day to day affairs of the canteen are being run by the Vice President of the Committee as its ex-officer member. It was submitted that the requirement under the Factories Act to provide and maintain the canteen could be done by employing an agent such as staff committee or co-operative society for management of the canteen. Paragraph 2832 of the Indian Railway Establishment manual empowers the administration to appoint as agent, Staff Committee or Co-operative Society to manage the canteen. Accordingly, in law, the staff of the canteen could not be employees of the Railways. It was further stated that the canteen under the statutory obligation was accepted by the Board as a part of the concern by its letter dated December 27, 1961 but by subsequent letter dated April 20, 1963, it was clarified that the canteen employees were not necessarily workers under the Factories Act. It was further decided that where the canteens are run by the co-operative society or the Managing Committee and there subsists a relationship of master and servant between the co-operative society or the Managing Committee and the canteen staff, the canteen staff so employed are not to be treated as Railway servant. The canteen in which the petitioners are employed is run by the Managing Committee and there subsists relationship of master and servant between the Committee and the canteen employees as the workers are appointed by the Committee. The canteen in which the petitioners are employed is run by the Managing Committee and there subsists relationship of master and servant between the Committee and the canteen employees as the workers are appointed by the Committee. There is no such relationship between the Railway and the canteen employees. The petitioners accordingly cannot be treated as Railway servants. It is further stated that the pay and allowances of the canteen staff are reimbursed from the Railway revenue and the increased D. A. to canteen staff was granted with concurrence of the local Accounts Officer. Such increase was given till December 31, 1966. But as the local Accounts Officer did not give his concurrence to the increased D. A. the increase was not granted thereafter. Further the D. A. already paid at the enhanced rate from December 1, 1965 to December 31, 1966 was under objection and liable to be recovered from the petitioners. It was reiterated that the canteen staff could not be regarded as Railway servants and as such they are not entitled to any relief. The rule accordingly it was submitted, should be discharged. The petitioners filed an affidavit-in-reply and the allegations made in the petition were reiterated. 3. THE rule came up for hearing before Banerjee, J. and the learned Judge on a consideration of the materials came to the conclusion that though it was incumbent on the part of the occupier of the factory to provide a canteen, it was possible to make arrangement by an outside agency as provided in rule 2829 and 2834 of Chapter XXVIII of the Establishment Manual. But in the present case though the canteen was subsidised by the Railway, the petitioners were appointed by the Secretary of the Canteen Committee. Accordingly- on a consideration of the specimen letters of the appointment it was held that the petitioners were not entitled to a writ as prayed for. The rule was accordingly discharged. The present appeal is against this decision. 4. MR. Sudhir Kumar Bose learned Advocate appearing for the petitioners appellants submitted that under the provisions of Section 46 of the Factories Act, 1948 and the West Bengal Factories rules, 1958 the appellants are to be deemed to be employees of the railway Administration. The rule was accordingly discharged. The present appeal is against this decision. 4. MR. Sudhir Kumar Bose learned Advocate appearing for the petitioners appellants submitted that under the provisions of Section 46 of the Factories Act, 1948 and the West Bengal Factories rules, 1958 the appellants are to be deemed to be employees of the railway Administration. There is further no dispute that the wages and dearness allowance to the canteen staff are paid by the Railway administration from out of budget estimates made for the purpose. Again the canteen workers are controlled in the day to day affairs by a Railway officials and the alleged Managing Committee really has no function, voice or control in the management and affairs of the canteen and its staff. This position was also borne out by the circulars and orders of the Railway Board. Reference were also made to certain decisions in support which will be considered in due course. Mr. Ajay Kumar Basu, learned Advocate for the respondents contended on the other hand that the canteen workers can never be deemed as Railway servants in the attending circumstances. The railway servants have been defined in the Establishment Code as to comprise of specific several categories and they are to be appointed by appropriate authorities of the administration duly authorised in that behalf. In this case before us, the canteen workers do not come under any of the categories nor are they appointed by appropriate authorities duly authorised. Even though the railways have taken the full responsibility and obligation to pay wages and dearness allowances as admissible out of the budgeted estimates such fact of its own will not make canteen workers railway servants. Further the canteen was managed by a Managing Committee on co-operative basis and this committee gave appointments to canteen workers and exercised effective control over them. Due to mismanagement, while the Managing Committee had since been working as advisory body, the day to day work of the canteen in the interest of the workmen concerned is being carried on by two Railway Officials acting as president and Vice-President of the Workshop Canteen. Further the rules and circulars of the Railway Board do not provide for recognition of the canteen workers as Railway servants. 5. Further the rules and circulars of the Railway Board do not provide for recognition of the canteen workers as Railway servants. 5. THE conception of 'master' and 'servant' in the context of the labour laws of modern times has undergone material changes, the relationship of master and servant is not concluded now-a-days by the mere control by one of the work of the other, nor merely the existence of the power to appoint or dismiss and liability to pay wages are the elements to constitute such relationship. In Halsbury's Laws of England, Third Edition, Volume 25, Article 871 (p. 447) it is said: ". . . . . . . . but in general the relationship imports the existence of power in the employer not only to direct what work the servant is to do but also the manner in which work is to be done. A person may be the servant of another although a third party has the power of appointing and dismissing him or of requiring his dismissal or has powers of direction and control in regard to his works or pays him his wages." 6. A person may be a servant of one by operation of statutes in manner and to the extent provided therein or his employee for the purposes of payment of wages even if he is appointed and liable to dismissal by another. As will be seen, the Factories Act. 1948, which applies to Government workshops, in Section 46 provides that a State Government may make rules requiring that in any specified factory ordinarily employing more than two hundred fifty workers, a canteen or canteens shall be provided and maintained by the occupier for the use of workers. The term 'occupier' of a factory (Section 2 (n)) means the person who has the ultimate control over the affairs of the factory. Factory (Section 2 (m)) again has been defined as any premises including the precincts thereof where or in any part of which with ten or more persons with aid of power on with twenty or more persons without aid of power, any manufacturing process is being carried on. Factory (Section 2 (m)) again has been defined as any premises including the precincts thereof where or in any part of which with ten or more persons with aid of power on with twenty or more persons without aid of power, any manufacturing process is being carried on. Worker in Section 2 (1) means a person employed directly or through any agency, in any manufacturing process or in cleaning any part of the machinery or premises used for manufacturing process, or in any other kind of work incidental to or connected with the manufacturing process. Rules 67 to 72 of the West Bengal Factories Rules, 1958 framed by the Governor under Section 115 of the factories Act, have been prescribed under Section 46: Rule 67 enjoins that canteen is to be provided in or near the factory by the occupier. Rule 69 provides that the canteen should be equipped with sufficient utensils and equipment in clean and hygienic conditions. Under Rule 70, food, drinks and other items served shall be sold on non-profit basis while Rule 71 provides for production of books of account, registers etc. relating to the running of the canteen to the inspector and the accounts shall be annually audited. Rule 72 provides that the canteen Managing Committee shall consist of an equal number of persons nominated by the Manager and elected by the workers and a canteen Managing Committee shall be dissolved by the Managing Committee two years after the last election. Chapter XXVIII of the Indian Railway Establishment Manual provides as follows: management of Canteens. Indian Railway Establishment Manual (7th Edn.) Chapter XXVIII Staff Welfare section F Canteens. 2829. Provisions of Canteens as a statutory obligation. The provisions of Section 46 of the Factories Act, 1948, impose statutory obligation on the Railway Administrations to set up canteens in railway establishments, which are governed by the Factories act and employ more than 250 persons. Under sub-section 2 of the above Act, State Government are empowered to frame rules regarding the constitution of Managing Committees of Canteens falling within the purview of the factories Act representation of workers in the management thereof. As these rules have statutory force, Railway administration should strictly adhere to these rules in implementing the provisions of the Act in so far as they apply to the staff employed in railway establishments governed by the Factories Act. **** **** 2832. As these rules have statutory force, Railway administration should strictly adhere to these rules in implementing the provisions of the Act in so far as they apply to the staff employed in railway establishments governed by the Factories Act. **** **** 2832. Canteens provided under the statute. The staff served by Canteen should be actively associated in the management. For this purpose a Committee of Management of staff should be formed in accordance with the rules framed by the State Government concerned in this regard. The administration can employ as agent such as a staff Committee or a Co-operative Society for the Management of the canteens, but the legal responsibility for proper managements rests not with the agent but solely with the Railway Administration. In case the management of the canteen is entrusted to a Consumer Co-operative Society, it will be necessary for the Co-operative Society, to have its bye-laws suitably amended to provide for an overall control by the Railway Administration. 2834. Incidence of cost. When it is proposed to open a Canteen, as outlined in the above paragraphs the incidence of cost shall be as under: (1) Canteens provided otherwise than under the Factories Act: (a) ** ** ** (2) Canteens provided under the Factories Act, 1948. Besides the facilities mentioned in item 1 (a) above (accommodation etc.), the Administration will have to meet the statutory obligations, in respect of the expenditure on providing and maintaining canteens, arising from provisions of the Factories Act and the rules framed by the State Government there under. Note 1. The legal position is that expenditure on account of the following items is to be met by the administration and is not to be taken in account in fixing costs of meals: (a) the costs of utensils including cooking vessels, plates, glasses and other articles which would be necessary to serve meals to the workmen; (b) the costs of furniture. (c) the cost of coal, fuel and electricity, and (d) the salaries of cook and canteen staff. Note 2. (c) the cost of coal, fuel and electricity, and (d) the salaries of cook and canteen staff. Note 2. In cases where the canteens are being run on a cooperative basis either by a Co-operative Society or by a Managing committee of staff and there subsists a relationship of master and servant between the Co-operative Society/Managing Committee and the canteen employees (i.e. where the canteen staff have been employed by the Co-operative Society/Managing Committee of staff and not by the administration as such), the canteen staff are not to be treated as Railway Servants, even though the cost of these staff is reimbursed to the Co-operative Society |managing Committee under item (d) of Note 1 above. 7. IN the background of these provisions we shall examine the respective contentions of the parties. The first point of controversy is whether the workers of the canteen situated within the workshop in the circumstances referred to above, could be said to be employees of the factory which is the Loco, Carriage and Electrical Workshop of the South Eastern Railway Workshop, Kharagpur. Even though the canteen workers are not directly engaged in any of the manufacturing processes of the factory or other operations directly connected therewith, in the present context of industrial relations and social justice/the Courts have extended the ambit and definition of workers to persons, who though not connected with manufacturing process, provides essential and basic amenities to workers or persons engaged in manufacturing process, as doing work incidental or connected with the manufacturing process. In meeting a contention that the keeping of a canteen is not in the course of or for the purpose of conducting the undertaking, the Labour Appellate Tribunal of India at bombay in the Ahmedabad Manufacturing and Calico Printing Co. and others v. Their Workmen 1953 (II) L.L.J. 647 (52) observed referring to its earlier judgment. "Where by enactment a canteen is considered necessary for a mill, the establishment of such a canteen must be regarded as being in course of or for the purpose of conducting the undertaking for,. . . . . firstly the concern may not lawfully disobey the enactment, and secondly according to our present-day notions of social justice it is as necessary to refresh the human frame that works as to provide the lubricant that helps to keep the machines turning. " 8. . . . . firstly the concern may not lawfully disobey the enactment, and secondly according to our present-day notions of social justice it is as necessary to refresh the human frame that works as to provide the lubricant that helps to keep the machines turning. " 8. IT was accordingly held that the canteens are being run in the course of or for the purpose of conducting the undertaking and though run by the contractors they are part of the undertaking, which is liable to pay wage and dearness allowances of the canteen staff. Of course the Appellate Tribunal also relied on the definition of "employer" in bombay Industrial Relations Act, section 3 (14) (c) which defined "employer" as including the "owner" of the undertaking who entrusts the execution of the work of the undertaking to any person other than as servant or agent. In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Labour appellate Tribunal of India and others (A.I.R. 1964 S.C. 737.), it was held that the bungalows and gardens on which the Malis in this case worked were a kind of amenity supplied by the mills to its officers and on this reasoning and for the reason that their wages were paid by the mills the Malis were held to be engaged in operations incidentally connected with the main industry carried on by the employer. The decision took into consideration the industrial operations in modern times which have become complex and complicated and for efficient and successful functioning of an industry various amenities for those working in it are deemed essential for peaceful and healthy atmosphere. These observations were quoted with approval in Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. Ramtahel Ramanand and others (A.I.R. 1972 S. C. 1598 (1606)). 9. IN Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal and others (A.I.R. 1973 S.C. 2297.), it was held with reference to Section 46 of the Factories Act as also Section 3 (13) and (14) of the Gujarat Act of 1962, similar to those of the Bombay Act referred to above as follows: "since, under the Factories Act it was the duty of the appellant (the Mills) to run and maintain the canteen for the use of its employees, it appears to us that the ratio of the decision in (1953) 2 Lab. L. J. 647 would be fully applicable in which the same provisions of the Act were considered. " 'workers under the Factories Act', means any person employed, directly or through any agency in any manufacturing process or any other kind of work incidental to or connected with the manufacturing process. Though the workers of the canteen are not directly engaged in any manufacturing process or even any other work incidental thereto, on the terms of the definition in the statute and on the authority of the decisions cited above the establishment of the canteen must be deemed as being in course of conducting the undertaking as supplying basic and essential amenities to workers in manufacturing process. The workers of the canteen thus are also be regarded to be engaged in operations connected with the industry carried on by the employer and thus workers of the factory in which they are so employed. This is more so when the establishment and maintenance of the canteen is a statutory liability, as in the present case. 10. MR. Basu sought to distinguish the above cases referring to the definition of the 'employer' in the Bombay Industrial Relations Act and the U.P. Act and later on the Gujarat Act in terms whereof even though the owner contracts with any person the execution by such person of the whole or part of work of the industry, the owner will be and continue to be the employer in such industry. Mr. Basu submitted that the decisions must be deemed as confined to cases under the said Acts. The definition of workers in the Factories Act means one employed directly or through any agency in manufacturing process or any other work incidental to or connected with the manufacturing process. The canteen workers supplying basic and essential amenities to the workers engaged in manufacturing process are also deemed as workers as held in decisions referred to above. The point now is if by reason of their not being directly employed by the employer, but employed through a canteen committee, the workers can be treated as workers under the Factories Act. It is the specific case of the Railways that after November 1954 the management of the canteen was handed over to a managing committee formed for the purpose, composed of elected and nominated members. It is the specific case of the Railways that after November 1954 the management of the canteen was handed over to a managing committee formed for the purpose, composed of elected and nominated members. This canteen committee formed bye-laws of conditions of services of staff to be appointed for the purposes and canteen workers were appointed on the basis of letters of appointment accepted by them. As we have seen under the Factories Act and its Rules the Railways as the occupier having the ultimate control of the factory is required to establish and maintain adequate canteen. If in discharge of the statutory obligation, the occupier set up the machinery like canteen committee, retaining even then its overall control over the canteen, such committee obviously is an agency of the occupier for the purpose as also expressly provided in Rule 2832 quoted above. It is thus clear that the canteen committee under Rule 72 is being run through the agency of the committee at the instance of or set up by the Railways and but for such entrustment and authorisation the Committee would have no right to discharge any function in the canteen or in the factory workshop premises. Further for any lapse in the discharge of the duty, it is the occupier of the factory the railway administration will be answerable to appropriate authorities. Accordingly in law the canteen workers appointed by the canteen committee under the Factories Act are to be deemed and treated as employees of the occupier the railways. Under Rule 2832 of the Establishment Manual, the staff should be actively associated with the management of the canteen through a Committee of Management under Rules framed by the State government by Rule 72. It is however expressly stated that the legal responsibility for the proper management of the canteen rests not with the agent like the Managing Committee or the Co-operative society but solely with the Railway Administration and even if in cases of Co-operative Society which might be entrusted with the management of the canteen, its bye-laws should be suitably amended to provide for overall control by the Railway Administration. The entire expenditure on account of the canteen, costs of utensils, equipments, furniture, energy and salaries of the cooks and of the canteen staff are to be met by the Railway Administration. The entire expenditure on account of the canteen, costs of utensils, equipments, furniture, energy and salaries of the cooks and of the canteen staff are to be met by the Railway Administration. In the context of all these factors, and in view of the fact that canteen workers are to be deemed as workers of the workshop as defined in the Factories act, it must be held that the canteen workers are employees of the railway administration who is the owner of the workshop under the factories Act, notwithstanding Note 2 to Rule 2834, which has no statutory force and cannot over-ride the legal position based on statute and rules there under. 11. MR. Basu has further submitted that the Establishment Code provides for different categories of railways servants, their appointments, promotions, scales of pay, seniority and all other conditions of service. It is submitted that canteen workers have not been provided for in the said Code and accordingly they cannot be considered as Railways employees. 12. IT may be that the canteen workers are not included as railway employees under the relevant rules. Under the statute under our consideration, we have seen that such workers are to be deemed as workers in the employment of the occupier of the factory which is the railway administration. It may be the canteen workers constitute a separate and distinct class of employees and their terms and conditions may be governed by the contract containing in letters of appointment issued to them by the Canteen Management Committee. But the contention that employees of this category can never be railway employees by reason of their non-inclusion or absence of provision in Establishment Code can hardly be accepted, as the Railways have always the power to employ servants by contracts which power does not appear to have been expressly or otherwise taken away. 13. THE canteen workers have further depended salaries, allowances, increased dearness allowances with effect from January 1, 1967 and from earlier date. As we have seen, the employment of the canteen workers must be deemed to be on the basis of appointment-letters. It is not clear as to what procedure is being followed by the railway Administration in regard to payment of salary, allowances and dearness allowances. As we have seen, the employment of the canteen workers must be deemed to be on the basis of appointment-letters. It is not clear as to what procedure is being followed by the railway Administration in regard to payment of salary, allowances and dearness allowances. In any event, while no case regarding salary and allowances have been made with precision we have not been shown any statutory or legal right on part of the canteen workers and a corresponding statutory or legal obligation on the part of the administration to pay salaries etc. above minimum wages or enhanced dearness allowance to such worker which must be in the realm of contractor dependent on a policy followed by the Railway administration at its discretion. In either case, it is not possible to efferent any claim of workers which is dependent on contract or on the discretion of the administration. 14. IN premises, the petitioners will be entitled only to a writ commanding the respondents to recognise the canteen workers of the railway Loco, Carriage Wagon and Electrical Workshops at Kharagpur as employees of the Railway Administration under the Factories Act, 1948 with which we are concerned. The appeal accordingly is allowed in part to the extent indicated above and the judgment under appeal is set aside. The parties however will bear their own costs in the circumstances. Let the operation of this order be stayed for a period of eight weeks from date as prayed for.